Saturday, February 6, 2010

Plaintiff's Expert Cannot Testify, but Juror Tells Other Jurors About Police Dogs in Excessive Force Case

A 2005 case against an officer and the City of Albuquerque for use of excessive force in an arrest shows a number of odd, if not disturbing, elements. The suit was brought by the passenger in a car involved in a high speed chase. The passenger was bitten by a police dog after the car hit a wall.

The officer’s reason for attempting to pull over a car with two women in it was that the car was similar to one on which a bulletin had been issued regarding a burglary. The car with the women had a broken license plate lamp and was not the car involved in the burglary. What happened after the car hit the wall is described by the Tenth Circuit:

“The first officer at the scene was Defendant Lehocky. Lehocky testified that Marquez exited the car from the passenger side door, ignored Lehocky's command to stop and attempted to flee the scene. Lehocky ordered his police service dog, Bart, to apprehend the suspect. Bart complied and latched firmly onto Plaintiff Marquez. Meanwhile, Perkins [the driver], who had briefly exited the car, was now back in the car attempting to drive off. Lehocky then ordered Marquez, with Bart still firmly attached to her, away from the rear of the car. By this time, Officer Heshley had arrived and ordered Perkins out of the vehicle. Perkins complied and was taken into custody by Officer Heshley. Simultaneously, Defendant Lehocky removed Bart from Plaintiff Marquez and took her in custody.”

Marquez sued under 42 U.S.C. 1983 for excessive force, and a jury verdict went for the defendants. The district court concluded that the high speed chase indicated that the occupants of the car were a danger to the public and willing to evade arrest.

Marquez attempted to introduce an expert on police dogs at trial. The circuit court describes the expert.

Marquez sought to have her expert, Dr. George Kirkham, testify at trial that the use of a police dog is objectively reasonable only where there is evidence of an "articulable threat to" the safety of either the officer or a bystander….Kirkham's testimony was based upon his theory that a police officer should always use the minimum amount of force and, therefore, that any use of force beyond the minimum is, ipso facto, unreasonable….Kirkham was also to testify that Lehocky's actions in this case "violated well established law enforcement standards." … In sum, Kirkham's testimony comprised two parts: that the only reasonable use of force is the minimum use of force and what constituted well established law enforcement standards.”

Dr. George L. Kirham maintains a website ( which describes him as a police/private security consultant and expert witness based in Palm Beach Gardens, Florida. He has an impressive resume.

The district court excluded Kirkham’s testimony on a defense motion that the testimony was irrelevant and would be confusing. The circuit court agreed, noting that the Fourth Amendment does not require the least intrusive means of detention, only a reasonable one. The circuit court held that the district court did not abuse its discretion in excluding the testimony.

Another twist in the case occurred when a juror sent a note to the judge, saying that another juror was holding herself out as an expert in police dog training. This unnamed juror apparently made three assertions during deliberations:

1. Police dogs do not bite unless the suspect is fleeing.
2. The injuries suffered by Marquez from the bite were not serious.
3. Police dogs do not bite the first part of the body they come across.

The district court denied a motion for an evidentiary hearing. The circuit court said that a juror’s personal experience does not constitute extraneous prejudicial information, which would have required the district court to take action. The circuit court summarized the juror’s voir dire:

“During voir dire, the "expert" juror stated, without being asked, that her family in the late 1970s through the early 1980s trained police dogs and that her family "trained dogs and worked with dogs through [her] entire life." … Marquez's attorney then asked what the juror's role in the training was…. She responded that her own participation was "not much" and that the training was performed by her sister and father…. Notably, Marquez's attorney asked the juror only about her participation in dog training and never about her knowledge of dog training. Id. Therefore, the juror did not fail to honestly answer any question posed to her during voir dire when she did not disclose her knowledge of dog training techniques. The reason that the juror's specialized knowledge did not come to light, therefore, was a failure by Marquez's attorney to fully examine the juror during voir dire, rather then any misrepresentation by the juror.”

The circuit court determined again that the district court did not abuse its discretion in denying an evidentiary hearing here. Nevertheless, it seems arguable that the juror was, inside the jury room, stepping well beyond what her voir dire had suggested she knew about.

The verdict for the defendants was affirmed. Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005). This is not the only case involving this officer and his dog and an excessive force claim. See Chavez v. City of Albuquerque, 402 F.3d 1039 (10th Cir. 2005).

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